Germany: Supreme Court decides on international jurisdiction with regard to letting of holiday homes

The plaintiffs, domiciled in Germany, had rented a holiday home in Belgium from a Danish tour operator (the defendant). They had several complaints about the condition of the home and claimed for a price reduction. Based on the consumer forum pursuant to Articles 15 and 16 of the Brussels I-Regulation they filed their claim before their local court. The defendant filed a motion to dismiss the claim on the ground of lacking international jurisdiction of German courts. The first instance court (AG Schwerin) dismissed the defendant's motion and the appelate court (LG Schwerin) confirmed this order.

Upon further appeal of the defendant, the Civil Supreme Court (BGH) in its judgement of 23 Oct. 2012 upheld the decision: the exclusive jurisdiction of the courts of the memberstate where the rental property is situated with regard to tenancy contracts (Article 22 of the Brussels I-Regulation) would not aplly in the case of a tenancy contract over a holiday home concluded between a consumer and a tour operator who acts within the scope of his trade and does not own the holiday home. The BGH saw no necessity for a preliminary ruling by the ECJ.

Remark: In a similar case an Austrian court recently had decided to the contrary. Based on the ECJ judgements 241/83 Rösler/Rottwinkel and C-280/90 Hacker/Euro-Relais GmbH, the Austrian court had come to the conclusion that Article 22 of the Brussels I-Regulation is not limited to contracts where the house is rented from its owner but also applies to short-term rentals of holiday homes from tour operators unless the contract included further services of the tour operator (Court order 4 R 14/12f of LG Innsbruck of Feb. 2, 2012, published in RRa 2012, 251).